June 24, 2014
The duty to preserve relevant evidence is well established in both the legal community and business world. The obligation is broad in scope and requires action to prevent possible loss of evidence. Many corporate litigants have been subject to severe sanctions for the failure to preserve “ESI” or electronically stored information. Courts have made it clear that the destruction of evidence (spoliation), even if not willful, may lead to sanctions. While courts may award sanctions like the imposition of legal fees, in many instances courts have issued adverse jury instructions, effectively destroying a party’s case or defense. Moreover, it can be assumed that juries or judges will likely distrust a party who has destroyed evidence. But what if relevant ESI destroys itself?

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